Alexis Hutchinson, foster care and the perils of “deployment”

    By now the story of U.S. Army Specialist Alexis Hutchinson has made it all the way up the media food chain. Ordered to Afghanistan, she initially planned to leave her infant son with her mother. But her mother already had three sick relatives to care for and found she couldn't cope with an infant as well.

Hutchinson's lawyer said the Army's response was, in effect: Too bad. You're going to Afghanistan, and if you can't find anything else, your son is going to foster care. So Hutchinson didn't show up for deployment. She was arrested and, for two days, the boy was in foster care. He's now reportedly with his grandmother for the time being.

    This is not the first case raising similar issues. But it may be the first since the explosion in social networking sites like Twitter and Facebook. And that may explain how, in about 72 hours, the story made it from the alternative Inter Press Service, which first broke it, to the Associated Press, to more than 400 news outlets around the world.

    It is encouraging to read how many people understand how enormously harmful it is to an infant to throw him into foster care under such circumstances. (I particularly like the tweet from someone who suggested the Army have a "take your child to war" day.) People get that mom did not brutalize this child or starve him or torture him; she simply didn't have someone to take care of him.

    But the only thing unusual about this case is the fact that this single mom's job was about to be moved to Afghanistan. There are, in fact, thousands of children of civilian parents trapped in foster care when their parents didn't abuse them or neglect them either. Many of these parents, mostly single mothers – have what amounts to the same problem as Spec. Hutchinson.

    These are the mothers who are told: "We don't care if your child is sick, show up for work or you're fired." Mom knows if she's fired, she won't be able to pay the rent. She'll be homeless and child protective services can take the child because of lack of housing. So mom shows up for work. Someone calls child protective services. The child is taken away on a "lack of supervision" charge.

    Indeed, in many communities, "lack of supervision" is the single largest category for "substantiated" allegations of maltreatment. Sometimes, of course, that's entirely the parent's fault – maybe she left a child home alone to party, or do drugs, or all those other stereotypes that leap to mind about parents who lose their children to foster care.

But often, it's a mother whose child was sick, or who couldn't afford child care, or who couldn't get such care because she works odd hours. They may be mothers like Lillian Lucas-Dixon, whose story was discussed in previous posts to this Blog. Her seven-year-old son was held in foster care for months because she had to leave him home alone for an hour to get to her job before an adult sibling could get there to babysit. "My choice was, do I lose my job or stay home with my son?" Lucas-Dixon, told the New York Daily News.

Typically, we hear about "lack of supervision" cases only when the worst happens, and only rarely are the stories told with the sensitivity shown in this New York Times story.

    So I hope those who understand how wrong it was to subject Spec. Hutchinson's infant son to foster care for even two days will think about how many thousands of other children are trapped in foster care right now, while their mothers are "deployed" to their jobs here at home.

The Tennessee foster care suit: It’s 10pm. Do you know who your plaintiffs are?

Andrew, Kenneth, Nancy, Donna, and Kiera have several things in common.

All of them are very young. Andrew is 23 months old, Kenneth is two years old, Nancy is 4, Donna is 5 and Kiera is 6.

All of them were torn from their families "on or about November 6, 2009" based solely on the word of a caseworker who told a judge they were in danger. None of their parents had a chance to defend themselves or fight for their children first. In all cases, the allegation against the parents is "neglect."

All of them are from Anderson County, Tennessee, a county with a total child population of only about 16,000.

And, though, of course, they don't know it, all of them are suing the State of Tennessee.

Andrew, Kenneth, Nancy, Donna, and Kiera are the "supplemental named plaintiffs" in the lawsuit brought by the group that so arrogantly calls itself "Children's Rights" as it attempts to block a state law that ever-so-slightly counterbalances the enormous incentives to needlessly tear apart families. (The law is discussed in detail in previous posts to this Blog.)

There is nothing unusual about having children as "named plaintiffs." Depending on what you want to change it can be difficult to sue a child welfare system without them (though in the many other such suits I've read, at least some of the young people were old enough to understand what was going on.) And in this particular case, the first time CR tried to sue over this law, using the children it already had as plaintiffs in a longstanding settlement against the Tennessee system, the judge effectively said they couldn't use the same plaintiffs this time; they'd have to find new ones.

Of course the children didn't make the decision to sue the State of Tennessee themselves. That was done by someone deemed capable of representing their "best interests" – known as their "next friend." For four of the five children in this suit their "next friend" is their guardian ad litem, a lawyer named to argue for whatever the lawyer thinks is in their "best interests," for the fifth, the decision was made by the child's CASA (which figures).

But how could they possibly know that joining this particular suit was in the children's best interests? And how could CR?

Normally, the stories of named plaintiffs are carefully researched. Then, at least, the lawyers can be confident in their own minds that the relief they seek will help these particular children. And, of course, the stories of the named plaintiffs usually are a key part of persuading the judge. Lawyers look for the most horrible examples of whatever injustice it is they are suing about. So if the issue is, say, abuse in foster care, the named plaintiffs will have endured prolonged, horrifying abuse, outlined in detail when the lawyers file their complaint. In Oklahoma, for example, CR just released a 163-page report on the horrors that befell the named plaintiffs in their class-action suit in that state.

But in the Tennessee case, according to CRs Complaint, the only thing we know is that these children were taken from their homes based on the word of a caseworker, and that decision was promptly rubber-stamped by a judge whose record indicates a fanaticism about child removal. (Remember, Anderson County is the one where children are taken from their parents at a rate four to five times the state average, which would make it a contender for Child Removal Capital of America.) And there certainly wasn't much time for investigating the cases or getting to know the children. Having been taken away "on or about November 6, 2009" they were already named plaintiffs by November 9, when the Complaint was filed.

So now, with no indication that CR's lawyers have ever met their new "clients" and with no indication if they even know whether these children ever should have been removed at all, CR is using these children to increase the odds that their time in foster care will be prolonged.

CR would argue that they're just trying to free the judge from any extraneous considerations, like money. But CR is remarkably inconsistent about that. Children taken from their homes routinely are placed with private agencies that are paid for every day they hold those children in foster care. Yet I know of no instance in which CR ever has sued to stop those kinds of financial incentives. So the real effect if CR wins, using these children as their named plaintiffs, would be to make sure that any and all "external" incentives, personal, political and financial, push judges in only one direction – taking away the children and stashing them in foster care for a long, long time.

It's possible, of course, that foster care might be the best thing that's ever happened to Andrew, Kenneth, Nancy, Donna, and Kiera. Maybe they really were in imminent danger and there was no other alternative but to remove them without so much as giving their parents a hearing; maybe their removal and continued placement in foster care will save their lives. But the odds are very much against that. Research tells us that If, indeed, foster care is prolonged, chances are only one of these five children will do well as a young adult. The odds are at least one, probably two of them will be abused in foster care itself. The odds that they will get in trouble with the law and be unable to hold a job and the odds that Nancy, Donna, and Kiera will become pregnant as teenagers are greater than had they been left in their own homes.

So at a minimum, didn't the lawyers at CR have an obligation to find out all about Andrew, Kenneth, Nancy, Donna, and Kiera before using them to seek a change in state law that would increase the odds that they will stay in foster care? Didn't they have an obligation to find out if that change would be best for these specific children before suing in their names?

If, in fact, CR wins its lawsuit and if these children wind up better off in foster care, they should know that CR's lawyers helped keep them there so they can thank them. But if CR wins and foster care turns out to be a disaster, as it so often does, then Andrew, Kenneth, Nancy, Donna, and Kiera should know that among those who share responsibility are some lawyers from New York City who probably never knew them and probably knew little about them when they turned them into "named plaintiffs."

Foster care in New York City: One shocking, shameful stat

IN FY2008, IN ONE OF THE LARGEST CHILD WELFARE SYSEMS IN AMERICA, NOT ONE CHILD WAS ALLOWED TO EXIT FOSTER CARE TO THE PERMANENT GUARDIANSHIP OF A RELATIVE

The group that so arrogantly calls itself Children's Rights (CR) has a new report out about foster care in New York City. Considering who wrote it, it's not nearly as bad as it could have been; something I'll discuss in a future post. But one statistic the report unearths is so shocking, and such a damning indictment of New York City's Administration for Children's Services, that it demands special attention.

    It concerns guardianships – a form of permanence that is particularly valuable when a child is placed in kinship care with a relative. Often grandma may be ready, willing and able to raise a grandchild as her own – but she doesn't want to go to court to terminate her own daughter's parental rights. With guardianship, she doesn't have to do that, the child still attains a measure of permanence almost as complete as with adoption, and the family gets the child welfare agency out of their lives.

    But if grandma was a formally-licensed foster parent, she could not get the same payments once she became a guardian, unless the state or locality chose to fund it. That's because the federal government would not chip in, the way it does with adoption subsidies. Some states decided that guardianship was such a good option they would pick up the tab for what became known as "subsidized guardianships." Others, notably Illinois, obtained waivers allowing federal funds to be used for them. That's one of the things that propelled Illinois into the forefront of what are, relatively speaking, reformed child welfare systems.

    And now, federal law has been changed and the feds will pay as much for guardianship subsidies as they do for adoption subsidies. In addition, even unsubsidized guardianship can be a viable option for relatives who are not formally licensed as foster parents and so never got foster care subsidies in the first place.

    But some states won't opt in, because, even with the federal government helping, they don't want to pay the state or local share. Among those states is New York. But that's not only because of money, it's also because someone who once was among the most progressive leaders in child welfare, the commissioner of New York City's Administration for Children's Services, John Mattingly, is falling farther and farther behind best practice in the field. As I wrote on this Blog in August:

Mattingly [argued] in an e-mail to a New York City think tank that

"Those of us who have been in the field long enough know that most times, relatives will adopt if reunification is not a live option, if the agency supports them in their decision, and if it will achieve permanence for the child. In sum, kinship guardianship can be the best option for a small percentage of children, but the State of New York needs to be careful to craft regulations for its use that will continue the emphasis on adoption for most children who cannot return home."

In other words: If we strong arm grandma (by say, saying if you don't do it, we'll transfer your grandchild into the home of strangers), she'll go to court and push to terminate mom's parental rights. While that may make the adoption numbers look good, it's not necessarily best for the grandchildren. Furthermore, the Child Welfare Organizing Project
(CWOP) points out that in Illinois, a national leader in subsidized guardianship, formal adoptions actually increased after guardianship was added to the menu of options. For another example of a smarter perspective on this issue, see
the response from Generations United in Youth Today….

And even Michigan (Michigan!) has proven more receptive to subsidized guardianship, with their child welfare agency noting the special concerns in the African American and Native American communities about terminating a relative's parental rights.

    Well, now it turns out that Mattingly has backed up his words with inaction. The CR report found that in all of Fiscal Year 2008, in one of the largest child welfare systems in the United States not one single foster child – not one – was placed in the guardianship of a relative. Fewer than two percent of New York City foster children even have "discharge to relative" as their primary permanency goal. Apparently ACS would rather let them languish in foster care until they can strong arm grandma into an adoption.

CR’s new push for more foster care in Tennessee

The group that so arrogantly calls itself "Children's Rights" is back in federal court in Tennessee. Once again, CR is trying to ensure that nothing gives the judge in Anderson County, whose fanaticism about child removal may be unexceeded anywhere in America, even a moment's pause about tearing apart family after family.

    As is discussed previously on this Blog, CR is challenging a law that says if counties tear apart families at more than triple the state average they are free to keep right on doing so – but they have to pick up the tab for the foster care. The only county actually affected is Anderson, which removes children at a rate either four times or five times the state average, depending on which source you believe. Either way, that might make Anderson County a candidate, along with a few others, for Child Removal Capital of America.

    In theory, CR is simply arguing that judges must continue to make their decisions in their current pristine, pure state, uncontaminated by even a passing thought about money or anything else besides "the merits." If anyone needs still another reason to open these hearings to press and public, the fact that CR is trying to pass of this Disney version as reality is a very good one.

    If that really were how juvenile courts operate, there would be no foster-care panics, no surges in removals after a high-profile case made headlines. Judges would simply admonish caseworkers not to be influenced by the fear of landing on the front page, refuse to rubber-stamp all those additional removals and that would be that. If decisions were made purely "on the merits," there would be no enormous variation in rates of removal, not just among counties but among states, to the point where children in one state are torn apart at rates five times higher than another. And were decisions made only "on the merits," it would not be possible to track the rise and fall of the foster care population throughout the 20^th Century, as Prof. Leroy Pelton does in his seminal book For Reasons of Poverty, (Praeger, 1989) to one factor above all others: changes in federal financial incentives.

    Incentive after incentive after incentive, personal, political – and financial – push child welfare agencies to take-the-child-and-run. These same incentives push courts to rubber-stamp those decisions and, sometimes, even demand removal when a child welfare agency wants, say, in-home supervision.

The way to counter these incentives is not to pretend they don't exist, but to push back, with incentives to curb removals, so the incentives cancel each other out and decisions really can be made on the merits. (Of course that also would require that impoverished birth families have high-quality legal counsel, so they can balance the presentations by child welfare agencies, but one never hears about that from CR.)

    Tennessee's new law provides what can best be called one tiny counter-incentive. And that is the one and only incentive CR chooses to fight – in Tennessee or anywhere else.

    All over America, private agencies are paid for every day they hold a child in foster care. If they do what they are supposed to do – return the child safely home or, when that truly is not possible, get the child adopted, the money stops. The pernicious impact of these incentives was documented at least as far back as 1975, in a brilliant series by the New York Daily News.

    But I know of no case in which CR has gone to court to try to change these incentives. On the contrary, when New York City first tried to change them, in 1995, CR went to court and successfully stopped the change. (Now, the City is making some tentative steps toward changing those incentives again.) In perhaps the ultimate irony, CR just today released a study reportedly whining about how children languish in foster care too long in New York City. Perhaps had CR targeted the financial incentives to hold them there, back when the Daily News first exposed them, things might be different now. (CR didn't exist as a separate entity back then, but its founder, Marcia Lowry, was doing much the same work, affiliated at the time with the New York Civil Liberties Union.)

    So clearly CR isn't against all financial incentives – those that prolong foster care are just fine.

WHERE THE "SMOKING GUNS" REALLY ARE POINTED

    CR's "supplemental complaint" to the court is filled with quotes from various state officials and state documents which CR seems to consider damning. In fact, they show precisely why the Tennessee law is needed.

CR quotes the Commissioner of the Tennessee Department of Children's Services, Voila Miller, on a provision of the original bill that would have let the state bill counties if they took children at more than double the state average, instead of triple, as in the final law. Had that passed, and if counties did not change their ways, Miller estimated it might have reimbursed the state a total of $7.5 million. Said Miller:

The way we track commitment rates in Tennessee and most states is the number of children per thousand that come into the custody of the state. In Tennessee we have an average and most states, I mean, most counties rock right around that average of somewhere between three and four kids per thousand, we have a few counties in this state that commit at 16, 20 per thousand. That is significant overcommitment of children. Children are coming into state custody who should not. Now, we have been addressing this problem aggressively and we've made a lot of progress, and as I said, I want to work with those counties in making sure those kids can stay safely in their home. I don't ever want to collect a nickel of that 7.5 million dollars, I want to reduce that commitment level. [Emphasis added.]

    A Tennessee legislator explained that the provision was simply common sense. We're all more careful about spending our own money than someone else's:

[T]he policy consideration for this particular matter is to somewhat have our local governments be a little more judicious as to who they commit to state custody . . . . It makes people more responsible for their decisions, and when you're more responsible for your decisions you're going to be more careful with your decisions.

    Then CR quotes a memo from The Tennessee County Services Association, which it describes as "a nonpartisan, nonprofit public interest group." The memo said, in part:

The state average is 3.6 per 1,000 for children committed in the Dependent & Neglect and Unruly category. Anderson County's commitment rate is 17 per 1,000, some four times more than the state average. … The public policy implication is that in some cases juvenile judges are over-using their commitment authority and, thus, not offering alternatives to the family nor the child. [Emphasis added].

    Exactly.

    Then CR quotes the child welfare agency's budget director, who says:

    Actually, this one reduction actually is the only one in our Department that actually is good for kids. Now, you as a county may say, well, no, this is affecting your county budget. Our goal with this is that we as a Department don't collect a dime from the county. And that would be what was in the best interest of kids. . . . It's about . . . leaving [kids] with their families. (Emphasis added. But the ellipses this time and in the quote below are from CR – one can only wonder what CR chose to leave out.)

    And finally, what CR seems to think is the ultimate "smoking gun": An e-mail from the child welfare agency's legislative director in which he says:

    Anderson county [sic] clearly understands that they have a huge problem on their hands – their judge … We have the support of the county commission to work with the judge to bring down unneeded commitments.

    As for the law itself, in its final version it requires the child welfare agency to initiate a "collaborative planning process" with counties when entries are double the state average. Counties must pay only when they exceed triple that average.

    So what CR seems to view as a veritable arsenal of "smoking guns" points only in the direction of an agency that finally decided to use financial incentives in a way that can bring significant benefits to children – by saving them from the enormous harm of needless foster care.

    As to how CR got back into court on this issue – that, too, is instructive. And I'll try to get to it in a future post.

Foster care hearings: “Sunshine is good for children”

Matthew Fraidin is Associate Professor of law at the David A. Clarke School of Law at the University of the District of Columbia. Two years ago, he started a clinical program in which students represent exclusively birth families in child maltreatment cases – thereby doubling the total number of such programs across the country (the first is run by NCCPR's President, Prof. Martin Guggenheim, at New York University School of Law). His previous work has included representing both children and parents.

Below are excerpts from testimony Prof. Fraidin gave last week at a hearing of the D. C. Council, in which he calls for opening court hearings in these cases to the press and the public. The title for his testimony, "Sunshine is Good for Children" is a quote from the former Chief Judge of New York's highest court, the Court of Appeals, Judith Kaye, who ordered child maltreatment hearings opened in that state.

In my law students' cases, more than 60% -- that is 60% -- of the children taken from their families have been returned without ever being found abused or neglected. Yes, more than 60% of the children taken from their living rooms and schoolhouses, from their brothers and sisters and teachers and grandparents and friends – more than 60% of the children housed in foster care with strangers! – do not need to be there, by the government's own admission. They take the children, the Court rubber-stamps the removal, and only later, when my students find the information the agency missed, explain to the agency the information it distorted, and demonstrate that the child would be safest and healthiest in her own home, does the government agree – voluntarily! – to send the child home and dismiss its own case. Secret proceedings means that you can't meet the children whose lives are turned upside-down, perhaps never to be righted – for no reason.

You can't observe the rubber-stamp hearings. You can't watch a case worker hem and haw an explanation about why a distraught child hasn't been referred to a therapist, despite a court order directing the referral. You can't see a lawyer guessing at his client's position, rather than knowing it, because the lawyer hasn't met with the client since the previous court hearing. You can't sit in the back of a courtroom and shake your head in frustration and disgust at a judge who openly flouts the law, refusing to let a child live with her beloved aunt, simply because it is that judge's "personal policy" not to allow children to live with relatives unless [the Child and Family Services Administration (CFSA), D.C.'s child welfare agency] agrees. You can't know what's going on, and you can't do anything about it.

Operating behind an impenetrable iron curtain that is anathema to American governance, the Family Court deprives children of the checks and balances they need for health, safety, and stability.

I am here to testify that sunshine is good for children.

D.C. IS OUT OF STEP

The District of Columbia is out of step with a growing national trend by guarding the walls that, in turn, guard adults' secrets and their errors of commission and omission:

• Judges say open courts are good for children: The National Council of Juvenile and Family Court Judges issued a public Resolution in 2005, attached to my testimony, supporting open courts. The National Child Abuse Coalition, the Council of State Court Administrators and the Conference of Chief Justices all agree that states should have discretion to open their courts. …
  
• Seventeen states have opened child welfare proceedings …
  
  
• No state that has moved to transparency has ever shut down again. Many states opened child welfare hearings on a "pilot project" basis, and none retreated to the darkness of secrecy.
  
• Doubters are convinced:
  Even judges and children's advocates who initially were vigorously opposed to transparency become enthusiastic converts, convinced of the benefits to children. After Minnesota's courts had been open for a year, the Minneapolis Star-Tribune noted that "the greatest fear--that troubled children would be victimized and embarrassed by sensationalized new media coverage and community scorn--has yet to be realized."
  
• Open court proceedings empower children: According to Minnesota Judge Heidi Schellhas, "Open child protection proceedings may…assist the psychological recovery of the abused children…'victims of abuse often carry their burden alone, in secret' and closed proceedings simply 'continue the notion that something shameful has happened, and that no one should be told.'"…
  

We cannot be sure adults are serving children unless we can see them. If adults' actions are hidden behind a wall, we are literally in the position of having to take the adults' word that they're doing their job. …

A CASE IN POINT

One of my former child clients, now dead by gunshot, asked his group home not to house him with a roommate because, he admitted, he was disliked by some of the other children and felt uncomfortable with them. The group home ignored him, as well as my similar request on his behalf. Another resident of the group home – also now-deceased by gunshot -- came in and stabbed my client in the shoulder with a screwdriver. Bad enough, but the agency then proposed to bring both boys to the CFSA offices to put them in a room together to "mediate the dispute." No one knew this went on – no one has ever known until you, now, some six or more years later.

Same child: in addition to being stabbed, the child was victimized when his new roommate allowed other boys into the shared room. The other boys stole some of my child client's clothing. It was all he had, in two garbage bags and a battered suitcase. He'd been in foster care since he was nine years old, and had carted sneakers and clothing to the dozen or more homes he'd lived in. He was enraged by the theft, and broke some of the thief's property and kicked a hole in a wall. Arrested for the destruction of property, he was locked up overnight, for the first time ever, and charged as a juvenile. The CFSA worker was set to tell the delinquency judge that the child's best interests would be served by going to Oak Hill [D.C.'s juvenile jail] because it would "be therapeutic for him." I remonstrated with the worker in the courthouse hallway and burned up telephone lines for hours until I located a foster parent with an empty bed and persuaded CFSA that a foster home would be more appropriate for the child than Oak Hill.

Until now, no one has known about this.

No one has known until now that the boy became a loving, gentle, doting father. The baby's mother went off to finish her final semester of college, and the ward was the baby's only caretaker. No one has known that the adults working for CFSA refused to allow the young dad to live with his baby. CFSA had no teen-father placements, they said. They assigned him to programs and buildings that did not allow babies. So he "absconded" every night, meaning he went to his mother's home, or his mother-in-law's home, or to his grown sister, or to an aunt, or to a friend or anywhere he could keep his baby. Demerit after demerit after demerit from the adults at CFSA, harassing him, adding stress to an already-burdened life.

No one has ever known that the adults at CFSA later sought again and again to have this child's neglect case closed because he wasn't appreciative of the services they were offering.

No one has known until now, from this testimony, that when my child client became an adult and buckled under the stress and picked up minor adult criminal charges, the adult employees of CFSA and [the D.C. Office of Attorney General] OAG strenuously resisted my pleas and my client's to install an operating telephone in his residence. See, he was wearing an electronic ankle bracelet, and needed the telephone to be working to connect with the bracelet, so that he would not violate his conditions of release on the criminal charge. The adults working for CFSA and OAG said, again, that it would be better for the child to go to jail – the D.C. Jail, this time – than to reside in their care. So they refused to install the telephone to make sure he would be locked up. Then, they could close his case and get him off the rolls. Voila! Lower caseloads!

The postscript is, of course, my child client's death. CFSA finally having worn down the Family Court Magistrate Judge, the child's case was closed a few months before he turned 21. A bright, sensitive, sweet guy, he had lived in dozens of foster homes, group homes, with his mother and grandmother, with his sisters, and in at least one RTC, and had no ties to anyone but his wife and children. He had attended more than a dozen high schools without graduating. He had a marijuana habit, and maybe others, that seemed relatively low-level to me, but showed no signs of abating. He had been trying to hold down a job, and also had been stealing drug dealers' small stashes and selling those to support his two children.

He was shot at 1408 Girard Street on the day police were installing a crime camera around the corner. He made the paper for that. He made the paper again, though I'm the only one who knew it, because he wasn't identified, when Lafonte Lurie Carlton, his killer, was released a few years later from Oak Hill and killed again.

My child client would have wanted Carlton to be released, by the way. He knew children need lots of chances and lots of help. He also knew, painfully, that adults often fail children, even adults who mean well and certainly, adults who don't care or can't be bothered or who have other priorities. Would that dear child still be alive if the adults who hurt him and ignored him and despised him had been seen for what they'd done? Might they have straightened up a little and flown a little righter if they'd known that, like other adults, they could be held accountable for their actions?

SHIRKING RESPONSIBILITY

It's ironic that teaching our children "responsibility" is a major tenet of parenting. We want children to grow up to understand that that their actions have consequences. While parents try to teach this value to their charges, the adults surrounding children in the foster care system are not responsible for what they do and don't do. In our secret system, adults don't have to live the value, to practice what they preach.

Yes, we must ensure that the right adults have the right information to help children. It is equally important, however, to make sure we don't give adults a blank check to go along with that power. We have to make sure they use their power to help children. We are all responsible and we all must watch: family, friends, neighbors, the press. No one can be healthy in the dark: sunshine is good for children.

FLDS and foster care: Texas’ brilliant idea

What a concept! Attack child abuse by going after the abuser instead of revictimizing the victim.

They've just done that in Texas. As the Associated Press reported last night, Raymond Jessop, a member of the FLDS, "was convicted of sexually assaulting an underage girl with whom he had a so-called spiritual marriage." He could be sentenced to up to 20 years in prison.

Doing it this way has several advantages:

• You don't turn children from so-called spiritual marriages into victims by tearing them away from their mothers, interning them in a kiddie-Gitmo and then sending them hundreds of miles away into institutions.
  
• You don't revictimize the girl who was sexually assaulted by tearing her child from her – and quite possibly making her more loyal to the FLDS and more fearful of the outside world.
  
• You don't do enormous emotional harm to hundreds of children who were not, in fact, abused by anyone at the FLDS compound.
  
• Instead of exiling the victim and her children, you can put the abuser someplace where he can't possibly abuse another child – jail – for a long, long time.
  

If only Texas authorities had come up with this brilliant idea before they took more than 400 children from the compound in the first place.

Child abuse and foster care: The “dead armadillo” school of child welfare reform

Americans may identify as liberal or conservative, but they like best thinking of themselves as moderates. The very word moderate is flattering. Moderation implies thoughtfulness, it suggests looking at each situation individually and rendering a custom-tailored judgment. And it suggests that anyone who disagrees with you is an extremist who believes in "quick fixes" and "one size fits all."

That's why every good politician has one rule: Whatever ground you're standing on, claim it as the middle ground.

That works especially well on journalists, who tend to be, as one excellent reporter I know put it long ago, "knee-jerk moderates." (That's why news stories always seem to be filled with "swinging pendulums" and assurances that "the truth, of course, lies somewhere in between.")

But jerking one's knee toward moderation is as wrong-headed as jerking it in any other direction. And sometimes it's worse. Often, as Jim Hightower says: "there's nothing in the middle of the road but yellow stripes and dead armadillos."

AN ODD OP ED COLUMN

Which brings me to a peculiar op ed column by John Mattingly, commissioner of New York City's Administration for Children's Services (and before that, director of Human Services Reform at the Annie E. Casey Foundation, where he recommending that they fund NCCPR – perhaps not his favorite recommendation right now.)

The op ed is not peculiar in substance – on the contrary, it's the very soul of knee-jerk moderation and claiming the ground you're on as the middle. What's peculiar is the fact that it was published in the Milwaukee Journal-Sentinel and offers advice on how to fix child welfare in Milwaukee. (Much of it is generic, however, and I can imagine other versions turning up across the country.)

Even more peculiar, a lot of Mattingly's advice to Milwaukee appears to be at odds with what's happened in New York City.

The heart of the column appears to be a paragraph in which he sets himself up to claim that sacred middle ground by describing the "typical" response to high-profile child abuse deaths. The paragraph begins this way:

Even more typical, however, are the pressures that Wisconsin already has felt to fix the problem and fix it now, in one of two contradictory ways: 1) Make child protection the "No. 1" response and err more on the side of child safety;

OK, let's stop there for a minute. John Mattingly, of all people, should know better than to equate child removal with "child safety" and "child protection." He knows the data on the inherent trauma of foster care, and what studies say about the rate of abuse in foster care.

Mattingly continues:

or 2) as some advocates suggest, somewhat counterintuitively, remove children far less frequently.

Hmmm. I wonder who he means by that?

Let's get real. When it comes to long-term reform of child welfare systems, NCCPR, and our partners, have accomplished an enormous amount on a shoestring budget. But flattering as it is to think that our efforts to curb needless removal of children can equal the pressure to take-the-child-and-run in the wake of a high-profile death, it's also absurd.

The notion that there are equal pressures pulling and tugging beleaguered child welfare administrations in opposite directions – as they seek to cling desperately to the sacred middle ground and judge each and every situation case-by-case – is so preposterous that I'm tempted to finally break my no-profanity-on-this-blog rule. For starters, can anyone name any child welfare system, anywhere, in which a high-profile fatality was followed by a sharp drop in removals of children?

THE FACTS ON THE GROUND IN MILWAUKEE

It's especially preposterous in Milwaukee where, even before the current foster-care panic, the child welfare system was tearing apart families at one of the highest rates among larger urban centers.

Indeed, when consultants were hired as part of a lawsuit settlement and specifically instructed not to look at issues involving alternatives to taking away children (three guesses whose lawsuit it is), the consultants were simply too professional to ignore the elephant in the room. At one point they wrote:

"…Milwaukee has a relatively high rate of children placed in out-of-home care per 1,000 children … This suggests that stakeholders that believe the Bureau [of Milwaukee Child Welfare] needs to expand and strengthen its in-home child protective services supports may be correct in seeing an opportunity to further reduce the number of children in out-of-home care."

And later, the report states:

The author also believes that increasing the intensity and scope of in-home supports for families at-risk of having a child enter foster care can prevent additional placements. Because that population was not part of the scope of the review, no specific recommendations are made in that regard.

Milwaukee also is where a major peer-reviewed study found that many foster children could be home right now, or could have been spared from foster care at all, if their parents had decent housing.

Most people in Milwaukee don't know this, however, because Milwaukee also is where the last two reporters to have the child welfare beat at the Journal-Sentinel have almost completely shut out our perspective. One of them, a longtime crusader for taking away more children, who no longer is at the paper, even tried to denigrate us to the then-op ed editor, something I became aware of when the reporter made the classic "reply all" mistake. (

The op ed page itself has always welcomed all points of view, however, and published several NCCPR commentaries, for which we are grateful. But those columns notwithstanding, in Milwaukee 99 percent of the pressure on everyone from the frontline worker to top officials is to take-the-child-and-run.

AND NOW, THE STRAW MAN

Mattingly continues:

Unfortunately, experience across the country indicates that there is no quick fix (such as more or fewer removals.)…

Oh, come on – John Mattingly knows better than to stereotype our position that way. Almost every reporter who has spoken to me often enough has heard me explain that there is a right way and a wrong way to reduce entries into care, by saying something like this:

"As a group that believes strongly in family preservation, we feel that a high rate-of-removal almost always is a sign of a bad system. But a low rate-of-removal is not necessarily a sign of a good system. A low rate-of-removal can be accomplished either by embracing safe, proven programs to keep families together, or by ignoring children in real danger." Indeed, that language comes from our Rate-of-Removal Index, a document we've published annually for six years.

But we also maintain that reducing entries into care – the right way - is both vital to spare children who could remain safely in their own homes the trauma of needless foster care (for whom it may be a "quick fix" but also a safe, wise and humane fix) and an essential prerequisite for creating a better child welfare system. That's been proven in Alabama, Illinois, Maine, Pittsburgh, Pa. and, most recently, Florida. In contrast, there is not one child welfare system in America that has become, even relatively speaking, a national model by taking away more children. If the middle ground is leaving your rate of child removal right where it is, then, almost everywhere in America, and certainly in Milwaukee – and New York City – the truth does not lie somewhere in between.

THE FACTS ON THE GROUND IN NEW YORK

But perhaps the oddest aspect to Mattingly's claim that neither increasing nor decreasing removals is a solution is that he doesn't seem to have followed that advice. In New York City, entries into foster care have shot up by 50 percent in the wake of the death of Nixzmary Brown in January, 2006.

Mattingly also lists other things he believes won't work, writing that:

there is no silver bullet (such as privatization); there is no free lunch (caseload sizes always matter); there is no knight in shining armor (a new and better leader from out of town).

He's right about privatization and right about caseloads – but hiring more caseworkers often isn't the best way to reduce caseload size; doing more to keep families together usually is the better option.

But the comment about leadership is odd. Outstanding new leadership (sometimes from out of town sometimes not) was crucial to reform in most of the systems that now are among the best in the nation. And, notwithstanding all my concerns, I also believe the New York City system would be worse today had not Mayor Michael Bloomberg brought in John Mattingly from out of town to run it.

There are other "solutions" Mattingly implies often are bad ideas – and I agree with him. But these bad ideas also bear a striking resemblance to things that actually happened in New York City. Items from his bad ideas list include:

•Someone will be blamed and disciplined.

Mattingly fired workers involved in the Nixzmary Brown case. I'm not saying he was wrong in that particular case, I'm just not sure why this is now on his not-to-do list.

•Task forces will issue reports that yet again express shock over the quality of decisions made by the agency and place increased pressure on staff and managers to make fewer mistakes.

But when the New York City Department of Investigation issued a preposterous report, generalizing about his agency based on the 11 worst cases, Mattingly threw his arms around the document – and fired or disciplined 14 workers involved in those cases.

•Rules will be tightened; levels of case monitoring will be added. The latitude for independent judgment by the only staff with knowledge of the family will be decreased yet again.
But it was John Mattingly who issued the draconian sibling confiscation policy, under which his workers must take away the newborn siblings of any foster child unless multiple levels of supervisors sign off on allowing that newborn to remain home.

Sadly, Mattingly also takes the all-too-common cheap shot at unions, decrying "a labor-management system in the public sector that is weighted heavily against holding people accountable."

Union bashing is a failing not only of mainstream child welfare managers but, I'm sorry to say, of many in the family preservation movement as well. People who pride themselves on being able to work with the most difficult families, and see the best in them, somehow see only the worst in their own employees when those employees act collectively to assert their right to fairness in the workplace. If one wants more flexibility from those employees there's a way to get it: it's called negotiating.

THE FLAW IN THE NTSB MODEL

Mattingly's big solution is for government to respond to child abuse fatalities the way the National Transportation Safety Board responds to plane crashes – with careful case-by-case analysis to see what lessons can be learned.

But the best child abuse fatality review programs already do just that. In the process, they may, unintentionally, make things worse.

Because the trouble with child fatality review is it studies only child fatalities. And though each is the worst form of tragedy, they also are every rare. Therefore, there is no way to know if the problems you find are truly systemic – and you may well be missing more serious problems that could cause the next tragedy. The way to find out the typical problems is to look at the typical cases. What's really needed is systematic regular outside review of a random sample of cases, supplemented by near total transparency – all court hearings and nearly all records should be open in every case – so we all can be the "review committee."

The other problem with Mattingly's suggestion has to do with the crucial difference between air crashes and child protective services system failings: The civil aviation system is not shielded from almost all public scrutiny by "confidentiality" laws.

A large proportion of the public has had personal experience with air travel. And while we may not have enjoyed the long lines and the cramped seats, generally we get where we need to go safely every time. So even though air travel usually makes the front page when there is a crash, we know that, in fact, air travel is the safest form of transportation, and our personal experience reinforces that knowledge.

In contrast, the only time the child welfare system makes the front page is when there is a high-profile death. The day-to-day crisis of children wrongfully torn from everyone loving and familiar remains largely hidden by "confidentiality" laws. And most of us who are not poor have never had the personal experience of being falsely accused, much less losing a child to foster care. So we assume that the system errs in only one direction – leaving children in dangerous homes. Building accountability around fatality review only reinforces that misperception.

Kevin Ryan realized this when he was New Jersey's Child Advocate. His office did a superb job of reviewing child abuse fatalities. But he realized that no matter how careful the review and the recommendations, the process inherently left the impression that the errors go only one way. That's why he also commissioned the Families Under Supervision report, which looked at decisions from a wider perspective, including whether children were in foster care unnecessarily.

NCCPR has suggested a number of solutions in our publications Twelve Ways to do Child Welfare Right and Civil Liberties Without Exception. But here's one more, for New York City:

Use safe, proven alternatives to substitute care to reduce the rate of child removal to the rate in metropolitan Chicago – where children are taken at less than a third of the rate of New York, and independent court monitors have found this has been done with no compromise of child safety. Or at least use those approaches to roll back the surge in removals in New York since Nixzmary Brown died. That puts me squarely between Mattingly on one side and, on the other, the extremists who say any child welfare system is modern day slavery and CPS is a latter-day Gestapo.

Well, what do you know? I've found the middle ground.